Wednesday, July 28, 2010

Clinton Appointed Judge Orders Partial Injuction Against SZ SB 1070

UPDATE: local radio news reports that the federal government is appealing not the state of Arizona but, Arizona State Senator Russell Pearce, author of Senate Bill 1070, said "As of Thursday, the handcuffs come off of law enforcement. This says clearly that we can enforce federal law and we cannot be mpeded." and "We will appeal this immediately and we will win on appeal. This will be to the Supreme Court eventually, and I expect a 5-4 decision in our favor, perhaps even 6-3."

IT IS THEREFORE ORDERED granting in part and denying in part the United States’ Motion for Preliminary Injunction (Doc. 27).

IT IS FURTHER ORDERED denying the United States’ Motion for Preliminary Injunction as to the following Sections of Senate Bill 1070 (as amended by House Bill 2162): Section 1, Section 2(A) and (C)-(L), Section 4, the portion of Section 5 creating A.R.S. § 13-2929, the portion of Section 5 creating A.R.S. § 13-2928(A) and (B), and Sections 7-13.

That is a bunch of legal mumbo jumbo, of course. Download the linked pdf to read the judge's progressive legal contortions.

The bottom line is this judge says that state and local law enforcement cannot enforce federal law unless the current administration of the federal government wants it enforced. Seriously. Fine. All local and state law enforcement must, from this moment forward, tell all who report a bank robbery or a kidnapping or a weapons crime or an immigration crime or a drug crime, "those are federal crimes; you need to call the FBI" and don't even give them the number of the local office.

This law has NOT been declared unconstitutional. This is not over.

Some highlights:

First, the parts that are essentially stopped by today's ruling:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is likely to succeed on the merits in showing that the following Sections of S.B. 1070 are preempted by federal law:

Portion of Section 2 of S.B. 1070

A.R.S. § 11-1051(B): requiring that an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person

Section 3 of S.B. 1070
A.R.S. § 13-1509: creating a crime for the failure to apply for or carry alien registration papers

Portion of Section 5 of S.B. 1070
A.R.S. § 13-2928(C): creating a crime for an unauthorized alien to solicit, apply for, or perform work

Section 6 of S.B. 1070
A.R.S. § 13-3883(A)(5): authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States

The Court also finds that the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest. The Court therefore issues a preliminary injunction enjoining the enforcement of the portion of Section 2 creating A.R.S. § 11-1051(B), Section 3 creating A.R.S. § 13-1509, the portion of Section 5 creating A.R.S. § 13-2928(C), and Section 6 creating A.R.S. § 13-3883(A)(5).

Most people were probably not aware why the judge was reviewing the law section by section. She had no choice. It was written that way:

The Court notes that S.B. 1070 is not a freestanding statute; rather, it is an enactment of the Arizona Legislature that adds some new sections to the Arizona Revised Statutes (“A.R.S.”) and amends some preexisting sections. S.B. 1070 also contains a severability clause, providing that,

[i]f a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

S.B. 1070 § 12(A). Therefore, the Court cannot and will not enjoin S.B. 1070 in its entirety, as certain parties to lawsuits challenging the enactment have requested. The Court is obligated to consider S.B. 1070 on a section by section and provision by provision basis.

Now, from the linked pdf we are reminded that “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Emphasis mine. Read the whole thing!

The parts of the law are notenjoined and which will be the law of the State of Arizona as of midnight tonight (July 28th, 2010):

Other than seeking a preliminary injunction as to “S.B. 1070,” the United States has not made any argument to preliminarily enjoin and the Court therefore does not enjoin the following provisions of S.B. 1070:

Section 1 of S.B. 1070
no A.R.S. citation: providing the intent of the legislation

A.R.S. § 11-1051(C)-(F): requiring that state officials work with federal officials with regard to unlawfully present aliens

A.R.S. § 11-1051(G)-(L): allowing legal residents to sue any state official, agency, or political subdivision for adopting a policy of restricting enforcement of federal immigration laws to less than the full extent permitted by federal law

Portion of Section 5 of S.B. 1070
A.R.S. § 13-2928(A)-(B): creating a crime for stopping a motor vehicle to pick up day laborers and for day laborers to get in a motor vehicle if it impedes the normal movement of traffic

Further sections not enjoined because the feds are likely to lose the lawsuit:

Applying the proper legal standards based upon well-established precedent, the Court finds that the United States is not likely to succeed on the merits in showing that the following provisions of S.B. 1070 are preempted by federal law, and the Court therefore does not enjoin the enforcement of the following provisions of S.B. 1070:

Portion of Section 5 of S.B. 1070

A.R.S. § 13-2929: creating a separate crime for a person in violation of a criminal offense to transport or harbor an unlawfully present alien or encourage or induce an unlawfully present alien to come to or live in Arizona

Section 10 of S.B. 1070
A.R.S. § 28-3511: amending the provisions for the removal or impoundment of a vehicle to permit impoundment of vehicles used in the transporting or harboring of unlawfully present aliens